Bond Hearings: The Detainee’s Financial Ability to Pay

When a foreign national is detained by Immigration & Customs Enforcement, the detainee normally may request a bond hearing before an immigration judge in Immigration Court. The judge may grant bond if the person is not subject to mandatory detention. Mandatory detention applies to people with certain crimes or who are applying for admission at a port of entry. The minimum bond amount is $1,500, but judges often order bond in the tens of thousands of dollars on the rationale that a higher bond is necessary to ensure appearance at the hearing. When deciding whether to issue an order for bond and in what amount, immigration judges consider a variety of factors pertaining to three main criteria:

The person is not a threat to national security;

The person’s release would not pose a danger to property or persons; and

The person is likely to appear for any future hearings.

The U.S. Court of Appeals for the Ninth Circuit recently decided that immigration judges must consider i) the detainee’s financial ability to pay the bond, and ii) alternative conditions of supervised release. Hernandez v. Sessions, No. 16-56829 (9th Cir. Oct. 2, 2017). In other words, by failing to consider a person’s financial circumstances when setting a bond amount or alternative conditions for release, the government risks detaining someone as punishment for his poverty.

When preparing a request for bond or supervised release, a person should provide evidence to support the following factors:

A fixed address

Length of residence in the U.S.

Method of entry into the U.S.

Family ties in the U.S., particularly those through whom the detainee may be able to seek immigration benefits

Eligibility to apply for relief from removal

Employment history in the U.S., to show stability as well as financial means

Presence or absence of assets and savings

Household expenses

Financial or psychological harm to family from continued detention

There may be other factors that also affect a person’s circumstances, so it is important to discuss the detainee’s situation with qualified immigration attorneys in order to prepare the strongest request possible to obtain either a bond amount within the family’s means to pay, or an alternative condition for supervised release, such as electronic monitoring.